§ 3782 — Technical Data: Challenges To Contractor Restrictions

(a) The Secretary of Defense may challenge a use or release restriction asserted with respect to technical data by a contractor or subcontractor at any tier under a contract subject to this subchapter if the Secretary finds that— (1) reasonable grounds exist to question the current validity of the asserted restriction; and (2) the continued adherence by the United States to the asserted restriction would make it impracticable to procure the item to which the technical data pertain competitively at a later time. (1) A challenge to a use or release restriction asserted by the contractor in accordance with applicable regulations may not be made under subsection (a) after the end of the six-year period described in paragraph (2) unless the technical data involved— (A) are publicly available; (B) have been furnished to the United States without restriction; (C) have been otherwise made available without restriction; or (D) are the subject of a fraudulently asserted use or release restriction. (2) The six-year period referred to in paragraph (1) is the six-year period beginning on the later of— (A) the date on which final payment is made on the contract under which the technical data are required to be delivered; or (B) the date on which the technical data are delivered under the contract. (c) If the Secretary challenges an asserted use or release restriction under subsection (a), the Secretary shall provide written notice of the challenge to the contractor or subcontractor asserting the restriction. Any such notice shall— (1) state the specific grounds for challenging the asserted restriction; (2) require a response within 60 days justifying the current validity of the asserted restriction; and (3) state that evidence of a justification described in subsection (d) may be submitted. (d) It is a justification of an asserted use or release restriction challenged under subsection (a) that, within the three-year period preceding the challenge to the restriction, the Department of Defense validated a restriction identical to the asserted restriction if— (1) such validation occurred after a challenge to the validated restriction under this section; and (2) the validated restriction was asserted by the same contractor or subcontractor (or a licensee of such contractor or subcontractor).